People v. Vara , 425 Ill. Dec. 498 ( 2018 )

2018 IL 121823
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 121823)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
RICARDO VARA, Appellee.
Opinion filed June 1, 2018.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Justices Kilbride, Garman, Burke, and Theis concurred in the judgment and
opinion.
Chief Justice Karmeier dissented, with opinion, joined by Justice Thomas.
Justice Thomas dissented, with opinion, joined by Chief Justice Karmeier.
OPINION
¶1 Following a bench trial in the circuit court of Stephenson County, defendant
Ricardo Vara was convicted of child pornography (720 ILCS 5/11-20.1(a)(6)(vii)
(West 2012)). The circuit court sentenced defendant to serve a three-year term of
imprisonment and imposed certain fines mandated by various statutory provisions.
Thereafter, the clerk of the circuit court included several entries in the electronic
accounts receivable record pertaining to defendant’s conviction. Several of those
data entries indicated that defendant was obligated to pay other mandatory fines not
specified in the circuit court’s judgment. On appeal, defendant challenged the data
entries recorded by the circuit clerk that purported to assess additional fines not
imposed by the circuit court. The appellate court vacated the challenged data
entries and rejected the State’s argument that the appellate court had authority to
order imposition of the mandatory fines that were not imposed by the circuit court.
2016 IL App (2d) 140848. This court allowed the State’s petition for leave to
appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). For the reasons that follow, we find that
the appellate court lacked jurisdiction to review the clerk’s recording of fines that
were not ordered by the circuit court. Accordingly, we vacate the judgment of the
appellate court and dismiss the appeal.
¶2 I. BACKGROUND
¶3 After a bench trial, defendant was convicted of child pornography (720 ILCS
5/11-20.1(a)(6) (West 2012)). At the sentencing hearing on August 8, 2014, the
circuit court sentenced defendant on that conviction and on another conviction
resulting from a separate prosecution. With regard to the child pornography
conviction, the court ordered defendant to serve three years in prison and imposed
the following mandatory fines: a $1000 child pornography fine (id. § 11-20.1(c)), a
$500 sex offender fine (730 ILCS 5/5-9-1.15 (West 2012)), and a $500 additional
child pornography fine (id. § 5-9-1.14). 1 The court also imposed a $200 fine that
was described at the sentencing hearing as a “sheriff’s office fine” but was
referenced in the written sentencing order as a “sexual assault fine” (id. § 5-9-1.7).
¶4 Defendant filed a motion to reduce his sentence but did not dispute the validity
of the fines imposed by the circuit court. Defendant’s motion was denied, and he
timely filed a notice of appeal on August 22, 2014. The record on appeal was filed
in October 2014.
1
The statutory provision mandating this fine requires that $495 is to be remitted to the unit of
government whose law enforcement officers investigated the case that led to the conviction and $5
is to be deposited into the Circuit Court Clerk Operation and Administration Fund. 730 ILCS
5/5-9-1.14 (West 2012).
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¶5 In April 2016, the appellate court granted defendant leave to supplement the
record to include a document titled “payment status information,” which bears the
seal of the circuit court of Stephenson County. A certification on the payment status
information sheet is signed by a deputy circuit clerk and is dated April 13, 2016,
approximately 18 months after entry of the circuit court’s final judgment. The
payment status information sheet lists entries for fees charged to defendant as well
as mandatory fines, several of which were not included in the circuit court’s
judgment. According to the payment status information sheet, the following fines
and fees were charged to defendant: “Court” ($50), “Youth Diversion” ($5),
“Violent Crime” ($100), “Lump Sum Surcharge” ($250), “Sexual Assault” ($200),
“Sex Offender Regis” ($500), “Medical Costs” ($10), “State Police Ops” ($15),
“Child Pornography” ($495), and “Clerk Op Deduction” ($5).
¶6 On appeal, defendant did not attack his conviction, prison sentence, or the
monetary sanctions imposed by the circuit court. His sole contention was that the
fine assessments that were detailed in the payment status information sheet but not
referenced by the court were invalid and should be vacated. Defendant argued that,
although the challenged fines were mandated by statute, they were void because the
circuit clerk lacked the authority to levy fines. The State agreed that the fines
purportedly assessed by the circuit clerk were invalid but requested that the
appellate court either impose the mandatory fines or remand to the circuit court
with instructions to do so.
¶7 The appellate court vacated the fines challenged by defendant and refused the
State’s request that it impose the fines or order the circuit court to do so on remand.
2016 IL App (2d) 140848, ¶¶ 8-10, 37. The appellate court explained that, pursuant
to this court’s decision in People v. Castleberry, 2015 IL 116916, it did not have
authority to address the State’s request for correction of a sentence that does not
comply with the statutory requirements. 2016 IL App (2d) 140848, ¶¶ 25, 37.
¶8 The State appeals to this court.
¶9 II. ANALYSIS
¶ 10 In this court, the State attacks the appellate court’s judgment on several
grounds. First, the State contends that the appellate court lacked jurisdiction to
review the circuit court clerk’s recording of mandatory fines that were not included
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as part of the court’s final judgment. In the alternative, the State asserts that, if the
appellate court had jurisdiction, that court had authority to impose the mandatory
fines or remand the cause to the circuit court with instructions to impose the fines as
required by statute. The State also claims that the appellate court erred in vacating
the $200 sexual assault fine identified in the circuit court’s written sentencing
order. Finally, the State argues that in resolving this appeal we should amend our
rules to allow for correction of statutorily unauthorized sentences at any time by
motion in the circuit court.
¶ 11 Defendant counters that the appellate court had jurisdiction to vacate the
unauthorized fines assessed by the clerk of the circuit court but lacked the authority
to impose the mandatory fines or to order that the circuit court do so on remand. He
further argues that the appellate court correctly vacated the $200 sexual assault fine
referenced on the circuit clerk’s payment status information sheet because the trial
judge did not impose that fine at the sentencing hearing. Lastly, defendant opposes
the State’s request for amendment of our rules in disposing of this appeal because
no compelling reason justifies suspension of our typical rulemaking procedure.
¶ 12 At the outset, we note that no jurisdictional defect was asserted in the appellate
court. However, a reviewing court is obligated to ascertain its jurisdiction before
proceeding in a cause of action, regardless of whether the issue has been raised by
either party. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d
209, 213 (2009) (citing People v. Smith, 228 Ill. 2d 95, 106 (2008), and R.W.
Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998)). Jurisdiction
cannot be conferred by agreement of the parties, and a lack of appellate jurisdiction
is not subject to forfeiture. People v. Holmes, 235 Ill. 2d 59, 66 (2009); Franson v.
Micelli, 172 Ill. 2d 352, 355 (1996); Brauer Machine & Supply Co. v. Parkhill
Truck Co., 383 Ill. 569, 573 (1943). Consequently, we begin by addressing the
State’s argument that the appellate court lacked jurisdiction to review the fines
recorded by the circuit clerk on the payment status information sheet. The
determination of whether the appellate court had jurisdiction to consider an appeal
is a question of law, which we review de novo. People v. Shinaul, 2017 IL 120162,
¶ 8.
¶ 13 Article VI, section 6, of the Illinois Constitution confers on the appellate court
jurisdiction to review final judgments entered by the circuit court. Ill. Const. 1970,
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art. VI, § 6; Shinaul, 2017 IL 120162, ¶ 10. A final judgment “determines the
litigation on the merits such that the only thing remaining is to proceed with
execution of judgment.” Shinaul, 2017 IL 120162, ¶ 10; People v. Pawlaczyk, 189
Ill. 2d 177, 186 (2000). The rendition of a judgment is a judicial act, performed by
the court at the time it makes its pronouncement. In re Estate of Young, 414 Ill. 525,
533 (1953) (citing People ex rel. Waite v. Bristow, 391 Ill. 101 (1945), and Smyth v.
Fargo, 307 Ill. 300 (1923)).
¶ 14 In a criminal case, the final judgment is the sentence. People v. Allen, 71 Ill. 2d
378, 381 (1978). The imposition of a criminal sentence is the judicial act that
comprises the judgment of the court. Id. (citing People v. Moran, 342 Ill. 478
(1930)). A fine constitutes a pecuniary punishment imposed on a person guilty of
committing an offense. People v. Graves, 235 Ill. 2d 244, 250 (2009); People v.
Jones, 223 Ill. 2d 569, 581 (2006). Because the imposition of a fine as part of a
criminal sentence is a judicial function, it can be performed only by a judge of the
circuit court. See Allen, 71 Ill. 2d at 381; Moran, 342 Ill. at 480.
¶ 15 The Illinois Constitution also provides that clerks of courts are nonjudicial
officers of the court. Ill. Const. 1970, art. VI, § 18; Walker v. McGuire, 2015 IL
117138, ¶ 30 (citing Drury v. County of McLean, 89 Ill. 2d 417, 423 (1982)); see
also Hall v. Marks, 34 Ill. 358, 363 (1864). As such, a circuit clerk performs no
adjudicative or quasi-judicial function and is, instead, “ ‘an officer of the court who
has charge of the clerical part of its business.’ ” Walker, 2015 IL 117138, ¶ 30
(quoting People ex rel. Vanderburg v. Brady, 275 Ill. 261, 262 (1916)); see also
County of Kane v. Carlson, 116 Ill. 2d 186, 200-01 (1987).
¶ 16 Indeed, the clerical responsibilities of circuit clerks have been circumscribed by
statute since 1845. See Ill. Rev. Stat. 1845, ch. 29, § 35. Under our current statute,
the Clerks of Courts Act (Act) (705 ILCS 105/1 et seq. (West 2016)), the duties of
court clerks include the obligation to preserve all the files and papers of their
respective courts and to keep complete records of all the proceedings and
determinations thereof. Id. § 13. In addition, section 14 of the Act specifically
provides that circuit clerks “shall enter of record all judgments and orders of their
respective courts, as soon after the rendition or making thereof as practicable.” Id.
§ 14.
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¶ 17 Acknowledging the sharp divide between the adjudicative role of the court and
the clerical function of a circuit clerk, this court has held:
“ ‘[T]here is a well-recognized distinction between rendering a judgment and
entering a judgment. The former is the judicial act of the court in pronouncing
its ruling or finding in the controversy; the latter is the ministerial act of the
clerk in preserving the record of that decision.’ ” Williams v. BNSF Ry. Co.,
2015 IL 117444, ¶ 39 (quoting Freeport Motor Casualty Co. v. Tharp, 406 Ill.
295, 299 (1950)).
See also Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6, 16 (1992) (holding that the
rendition of a judgment is independent from the ministerial function of its entry by
the circuit clerk); Bristow, 391 Ill. at 114 (same); Smyth, 307 Ill. at 305-06 (same);
People ex rel. Isaacs v. Johnson, 26 Ill. 2d 268, 273-74 (1962) (declaring certain
tax laws unconstitutional because they directed the circuit clerk to enter
judgments).
¶ 18 Pursuant to the Illinois Constitution, the terms of the Act, and our long-standing
precedent, a circuit clerk is obligated to record the ruling of the court and has no
authority to enter a judgment on his or her volition. See Hall, 34 Ill. at 363 (holding
that a circuit clerk possesses no power to render a judgment and is only authorized
to enter a judgment pursuant to the direction of the court); see also In re Estate of
Young, 414 Ill. at 533-34 (holding that the judgment recorded by the clerk must
conform to the judgment pronounced by the court and that “[a]ny other rule would
permit the clerk to exercise a judicial function beyond his normal ministerial
activity”); People ex rel. Pardridge v. Windes, 275 Ill. 108, 113 (1916) (holding
that circuit clerk’s entry of the court’s orders is subject to judicial control and “[h]e
is not privileged to enter orders as he sees fit, contrary to the direction of the
court”). Thus, circuit clerks are duty bound to record the judgment issued by the
court and must do so in a manner that accurately reflects the intention of the court.
See Bristow, 391 Ill. at 109-10.
¶ 19 The judgment of the court is shown by the record kept by the circuit clerk.
People v. Kamrowski, 412 Ill. 383, 387 (1952); Bristow, 391 Ill. at 109-10; People
ex rel. Holbrook v. Petit, 266 Ill. 628, 631-32 (1915). Any action taken by a circuit
clerk that purports to alter the judgment of the court is invalid. See Hall, 34 Ill. at
363. Because the imposition of a sentence is reserved exclusively for the judiciary,
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a circuit clerk has no authority to assess a criminal fine that was not imposed by the
court. Allen, 71 Ill. 2d at 381; Moran, 342 Ill. at 480.
¶ 20 In applying these principles to the question of appellate jurisdiction here, it is
essential to bear in mind what defendant challenged in his appeal and what he did
not. Defendant sought relief as to certain fines that were recorded by the circuit
clerk on the payment status information sheet but were not referenced by the circuit
court. Defendant did not attack the validity of his conviction, his prison sentence, or
the fines imposed by the circuit court at the time of sentencing. Thus, this case
presents the anomalous circumstance in which a defendant has filed an appeal
seeking to uphold the judgment entered by the circuit court.
¶ 21 The circuit court’s judgment is reflected by the report of proceedings and the
written sentencing order signed by the trial judge, which demonstrate that the court
imposed four monetary sanctions on defendant: a fine of $1000, two fines of $500
each, and a fine of $200. The data entries referencing other fines not imposed by the
court did not accurately reflect the judgment that was entered at the time of
sentencing.
¶ 22 In addition, the payment status information sheet, dated approximately 18
months after the court’s final judgment, is a document that was created outside the
record of the trial court proceedings. Although defendant was granted leave to
include it as a “supplement” to the record, that leave was not warranted. Illinois
Supreme Court Rule 608 (eff. July 1, 2017) details the items that are to be included
in the record on appeal in a criminal case. The payment status information sheet is
not part of the common-law record or the report of proceedings of defendant’s
criminal prosecution. Under Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006), 2 a
supplemental record may be filed to correct material omissions or inaccuracies or if
the record is insufficient to present fully and fairly the question involved.
Amendment of the record is not to be used as a device for inserting extraneous
materials into the record on appeal. The payment status information sheet at issue
here cannot be characterized as a “material omission” or something that should
have been included in the record of the proceedings before the circuit court.
2
Rule 329 is applicable to criminal appeals pursuant to Illinois Supreme Court Rule 612 (eff.
Feb. 6, 2013).
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¶ 23 Because the circuit clerk had no authority to levy any fines against defendant,
the recording of the additional fines was invalid and unenforceable. However, the
fact that the clerk’s action was improper does not mean that defendant can
challenge the unauthorized fines through the appeal process. The appellate court is
constitutionally vested with jurisdiction to review final judgments entered by
circuit courts. The recording of a fine is a clerical, ministerial function and is not a
judgment—void or otherwise. Therefore, the improper recording of a fine is not
subject to direct review by the appellate court. Accordingly, we agree with the State
that the appellate court lacked jurisdiction to review the clerk’s recording of
mandatory fines that were not included as part of the circuit court’s final judgment.
¶ 24 In reaching this conclusion, we reject defendant’s argument based on our 2012
decision in People v. Gutierrez, 2012 IL 111590. In that case, the defendant filed an
appeal challenging the circuit clerk’s assessment of a public defender fee, which
could only be imposed by the trial court after notice and a hearing. Id. ¶¶ 3, 16, 19.
In doing so, the defendant asserted that the clerk had acted beyond its authority in
imposing the fee and characterized the clerk’s action as an “order” that was “void.”
Id. ¶ 14. This court accepted the defendant’s characterization of the circuit clerk’s
action and concluded that the appellate court had jurisdiction to consider whether
the public defender fee was improperly imposed. Id. That conclusion was premised
on what had been termed the “void sentence rule,” which allowed a statutorily
unauthorized sentence to be attacked at any time or in any court. Id. (citing People
v. Thompson, 209 Ill. 2d 19, 25 (2004)). At that time, the void sentence rule had
been understood to apply to the unauthorized assessment of a fine or fee by a circuit
clerk. Id. (citing People v. Shaw, 386 Ill. App. 3d 704, 710-11 (2008)). Appellate
review of such action was considered to be a pragmatic and efficient means of
ensuring that criminal sentences complied with statutory mandates. Id. ¶ 14 n.1.
¶ 25 However, the legal landscape has changed dramatically since Gutierrez was
decided. In Castleberry, 2015 IL 116916, ¶ 18, we abolished the void sentence rule
as unsound because it could not be reconciled with the constitutional grant of
jurisdiction and was inconsistent with our precedent in civil appeals. The
elimination of the void sentence rule substantially undermined the analytical
foundation of the jurisdictional discussion in Gutierrez. After we issued our
decision in Castleberry, this court discussed the decision in Gutierrez. In People v.
Hardman, 2017 IL 121453, ¶ 55, we specifically recognized that where the circuit
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clerk purported to assess a public defender fee, which could only be imposed by a
court after a hearing, “there was no circuit court order” requiring the fee and “the
appellate court could not remand for a hearing on an order that did not exist.” Thus,
our decision in Hardman recognized the fundamental distinction between a court
order and the ministerial action of a circuit clerk. Id. In light of our recent
jurisprudence, defendant’s reliance on Gutierrez is misplaced.
¶ 26 Our dissenting colleagues disagree, and they rely on section 16(5) of the Act
(705 ILCS 105/16(5) (West 2012)) as support for the assertion that the clerk’s
assessments are considered part of the judgment. Infra ¶¶ 44-45, 63-69, 86. That
assertion has no purchase within the context of this case. Section 16(5), which sets
forth the circuit clerk’s responsibility for maintenance of a “fee book,” pertains
exclusively to the assessment of fees. Fines are not mentioned anywhere in that
provision, and there is no indication from its language that the information recorded
in the “fee book” would ever include the imposition of a criminal fine. Given that
fees and fines are substantively different (Jones, 223 Ill. 2d at 581), it cannot be
said that the language of section 16(5) applies to criminal fines. Therefore, section
16(5) has no bearing here.
¶ 27 Reliance on section 16(5) is problematic for other reasons as well. First, if
section 16(5) is interpreted as our dissenting colleagues suggest, it would defeat the
very crux of defendant’s argument—which is that certain fines included on the
payment status information sheet were invalid because they were not part of the
court’s final judgment. In addition, such interpretation necessarily equates a clerk’s
recording of a fine with a judicial act. That notion must be rejected for the obvious
reason that it would amount to a grant of judicial power to circuit clerks.
¶ 28 Moreover, the application of section 16(5) here is inconsistent with the
reasoning expressed in Gutierrez, which found appellate jurisdiction to address an
argument that the circuit clerk acted beyond its authority in assessing a public
defender fee, rendering the fee “void.” Gutierrez, 2012 IL 111590, ¶ 14. The
“voidness” of the clerk’s action in Gutierrez was based on the fact that the clerk
lacked authority to impose such a fee. Id. But the fundamental reason that the
clerk’s action was unauthorized was because the public defender fee had not been
ordered by the circuit court—i.e., the fee was not part of the court’s judgment. If the
public defender fee at issue in Gutierrez had been included as part of the judgment
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entered by the circuit court, the clerk’s recording of that fee would have been
authorized—indeed, it would have been mandatory. See 705 ILCS 105/14 (West
2012); Bristow, 391 Ill. at 109-10. Acceptance of the dissenting justices’ view that
a circuit clerk’s recording of such a fee or a criminal fine automatically becomes
part of the court’s judgment, by virtue of section 16(5), would nullify the
underlying premise of Gutierrez’s jurisdictional analysis.
¶ 29 Also, contrary to the view expressed by Justice Thomas in his dissent (see infra
¶¶ 84-88, 90, 93), the circuit court’s inherent authority to correct its own orders and
records does not expand the constitutional grant of jurisdiction to the appellate
court. The fact that the circuit court could order the clerk to rectify a clerical error in
recording the judgment cannot serve as the genesis for appellate jurisdiction. A
direct appeal from a circuit clerk’s recording error is essentially no different than
permitting the appellate court to exercise original mandamus jurisdiction—which it
does not possess. See Ill. Const. 1970, art. VI, § 6. Consequently, reliance on the
circuit court’s inherent authority to resolve this appeal is incorrect.
¶ 30 As set forth above, the clerk of the circuit court of Stephenson County exceeded
his statutorily prescribed authority by recording mandatory fines against defendant
that were not imposed by the trial judge at the time of sentencing. That action was
not the entry of a judgment but was, instead, the erroneous recording of the circuit
court’s judgment. Accordingly, the appellate court lacked jurisdiction to review the
validity of the fines challenged by defendant in this case. Where the appellate court
has addressed the merits of a case over which it had no jurisdiction, we must vacate
that court’s judgment and dismiss the appeal. Micelli, 172 Ill. 2d at 355.
¶ 31 In light of our conclusion that the appellate court lacked jurisdiction to entertain
defendant’s appeal, we need not address the State’s alternative argument that the
appellate court had authority to order the imposition of the mandatory fines that
were not imposed by the circuit court. We also do not address the State’s claim that
the appellate court erred in vacating the $200 sexual assault fine. Any questions as
to the accuracy of the data entries included in the payment status information must
be resolved through the cooperation of the parties and the circuit clerk or by the
circuit court in a mandamus proceeding. See People ex rel. Senko v. Meersman,
2012 IL 114163, ¶ 9 (recognizing that a writ of mandamus is a judicial order used
to compel a public official to perform a nondiscretionary, ministerial duty); see also
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Dennis E. v. O’Malley, 256 Ill. App. 3d 334, 346 (1993) (holding that an action for
mandamus can be used to compel a circuit clerk to comply with statutory duties).
However, we take this opportunity to firmly reiterate our admonishment to circuit
clerks that they may not, on their own initiative, assess any criminal fines or fees
that must be imposed by a court. See Gutierrez, 2012 IL 111590, ¶ 26. Such
overstepping by circuit clerks of their statutory authority cannot be condoned.
¶ 32 III. CONCLUSION
¶ 33 For the foregoing reasons, the judgment of the appellate court is vacated, and
the appeal is dismissed for lack of jurisdiction.
¶ 34 Appeal dismissed.
¶ 35 Appellate court judgment vacated.
¶ 36 CHIEF JUSTICE KARMEIER, dissenting:
¶ 37 I join Justice Thomas’s dissent and write separately only to emphasize the
majority’s flawed analysis.
¶ 38 Defendant’s case is not unique. There are hundreds of criminal appeals
involving the issue of fines and fees that were overlooked at the trial court level and
instead raised for the first time on appeal. Defendants are time and time again faced
with the grueling and burdensome task of challenging fines and fees that were
illegally assessed against them. Our appellate court, as recently as this year, has
criticized the “labyrinthine system of criminal fines and fees” and highlighted the
failure of the clerk’s office to update its form order. People v. Smith, 2018 IL App
(1st) 151402, ¶ 10; People v. Mullen, 2018 IL App (1st) 152306. In the last few
years, multiple news and media outlets have brought attention to the issue of fines,
fees, and costs assessed to defendants in not only Illinois (see Brian Mackey,
Illinois Issues : Still Paying For Justice, NPR Ill. (J ul y 7, 2016),
http://nprillinois.org/post/illinois-issues-still-paying-justice#stream/0; Ivan
Moreno, Illinois Court Fees Rising to Cover Special Programs, St. J. Reg. (July 10,
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2016), http://www.sj-r.com/news/20160710/illinois-court-fees-rising-to-cover­
special-programs (discussing the disparity in fines, fees, and costs across counties
and questioning what those funds go toward)) but around the country (see Matt
Zapotosky, Justice Department Warns Local Courts About Unlawful Fines and
Fees, Wash. Post (March 14, 2016), https://www.washingtonpost.com/
world/national-security/justice-department-warns-local-courts-about-unlawful­
fines-and-fees/2016/03/13/c475df18-e939-11e5-a6f3-21ccdbc5f74e_story.html;
Robin McDonald, Grady County Is Asked to Repay Thousands in Illegal Court
Fees, S. Ctr. for Human Rights (Aug. 9, 2013), https://www.schr.org/resources/
grady_county_is_asked_to_repay_thousands_in_illegal_court_fees; Campbell
Robertson, Suit Alleges “Scheme” in Criminal Costs Borne by New Orleans’s
Poor, N.Y. Times (Sept. 17, 2015), https://www.nytimes.com/2015/09/18/
us/suit-alleges-scheme-in-criminal-costs-borne-by-new-orleanss-poor.html;
Joseph Shapiro, As Court Fees Rise, the Poor Are Paying the Price, NPR (May 19,
2014), https://www.npr.org/2014/05/19/312158516/increasing-court-fees­
punish-the-poor).
¶ 39 Recognizing these problems, the legislature, through the Access to Justice Act
(705 ILCS 95/25 (West 2014)), created the Statutory Court Fee Task Force,
composed of members appointed by representatives of all three branches of Illinois
government and both political parties, to study the current system of fees, fines, and
other court costs. The task force created a report that proposed recommendations to
the Illinois General Assembly and this court, in an attempt to address the problems
with the current system of court fines and fees. Statutory Court Fee Task Force,
Illinois Court Assessments: Findings and Recommendations for Addressing
Barriers to Access to Justice and Additional Issues Associated With Fees and Other
Court Costs in Civil, Criminal, and Traffic Proceedings (June 1, 2016),
http://www.illinoiscourts.gov/2016_Statutory_Court_Fee_Task_Force_
Report.pdf.
¶ 40 The task force acknowledged that assessments against criminal defendants vary
widely from county to county. Id. Further, there is no one statute that lays out all of
the existing fines, fees, or costs that may be assessed against criminal defendants.
Id. The four key findings of the task force were that (1) the nature and purpose of
assessments have changed over time, leading to a byzantine system that attempts to
pass an increased share of the cost of court administration onto the parties to court
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proceedings, (2) court fines and fees are constantly increasing and are outpacing
inflation, (3) there is excessive variation across the state in the amount of
assessments for the same type of proceedings, and (4) the cumulative impact of the
assessments imposed on parties to civil law suits and defendants in criminal and
traffic proceedings imposes severe and disproportionate impacts on low and
moderate income Illinois residents. Id.
¶ 41 Unfortunately, since that report was released nearly two years ago, little has
changed. Therefore, it is incumbent on our courts to ensure that criminal defendants
are not being further marginalized by having illegal and void assessments imposed
against them following trial. Although we have emphasized the need for both
parties and the court to be diligent in reviewing fines and fees entered following
trial, their failure to do so is not uncommon. The Chicago Appleseed Fund for
Justice indicated that, in Cook County, nearly all criminal defendants have
improper court costs assessed against them following a conviction. Chicago
Appleseed Fund for Justice, Appleseed Applauds Efforts to Curb Illegally Imposed
Criminal Court Fines, Fees, and Costs; Releases New Resource for Defense
Attorneys (Feb. 14, 2018), http://www.chicagoappleseed.org/ffcappeals/. A simple
search reveals that there were well over a hundred cases, in 2016 alone, in which a
defendant challenged the imposition of fines and/or fees on appeal. See People v.
Griffin, 2017 IL App (1st) 143800, ¶ 5. Clearly, defendant’s case is not unique, and
this problem continues to persist.
¶ 42 While many of these errors should be discovered and resolved at the trial court
level, it has been our position and custom, as Justice Thomas aptly indicates, to
allow the appellate court the opportunity to correct erroneous fines and fees on
appeal, as long as the appeal is properly before the appellate court. See People v.
Gutierrez, 2012 IL 111590; People v. Lewis, 2018 IL App (4th) 150637; People v.
Glass, 2017 IL App (1st) 143551, ¶¶ 21-25; People v. Brown, 2017 IL App (3d)
140921, ¶¶ 42-46; People v. Truesdell, 2017 IL App (3d) 150383; People v. Larue,
2014 IL App (4th) 120595; People v. Smith, 2014 IL App (4th) 121118; People v.
Rexroad, 2013 IL App (4th) 110981, ¶ 43; People v. Nelson, 2017 IL App (3d)
150220-U, ¶ 15; People v. Garske, 2017 IL App (3d) 140839-U, ¶¶ 39-40; People
v. Six, 2017 IL App (4th) 150624-U, ¶ 21; People v. Monroe, 2016 IL App (4th)
140522-U, ¶ 24. Just a few months ago, under our supervisory authority, we
directed an appellate court panel to vacate its dismissal of the appeal for lack of
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jurisdiction and to address the issue of whether the amount of fines, fees, and costs
assessed against defendant was correct. People v. Warren, No. 122639 (Ill. Nov. 22,
2017) (supervisory order). To hold otherwise now runs afoul of not only our precedent
but also common sense.
¶ 43 Illinois courts have held that, through a notice of appeal, courts of review obtain
jurisdiction over the judgment specified in that notice of appeal. People v. Smith,
228 Ill. 2d 95, 104 (2008); Illinois Health Maintenance Organization Guaranty
Ass’n v. Shapo, 357 Ill. App. 3d 122, 148 (2005); Citizens Against Regional
Landfill v. Pollution Control Board, 255 Ill. App. 3d 903, 909 (1994). However, we
have also consistently understood that a notice of appeal is to be construed liberally
and will generally be accepted as long as it fairly and adequately identifies the
complained-of judgment. People v. Lewis, 234 Ill. 2d 32, 37 (2009). Here, it seems
obvious that defendant’s timely notice of appeal, which identified his conviction
and sentence and conformed with our court rules (Ill. S. Ct. R. 606 (eff. Feb. 6,
2013)), properly put in issue the illegal fines assessed against him by the circuit
clerk. This is especially true given that the legislature has provided that assessment
of fees and costs by the circuit clerk shall be considered part of the record and
judgment of a case. 705 ILCS 105/16(5) (West 2014).
¶ 44 As Justice Thomas notes, section 16 of the Clerks of Courts Act requires the
circuit clerk to maintain a fee book, which shall be considered part of the record and
judgment, subject to the correction of the court. 705 ILCS 105/16(5) (West 2016).
Although the Clerks of Courts Act itself speaks in terms of fees rather than fines, it
would be incongruous for this court to treat fines differently in cases like the one
before us today. The legislature has a long history of misusing the terms fines and
fees. See People v. Jones, 223 Ill. 2d 569 (2006) (holding that a $500 controlled
substance assessment was a “fine,” for presentencing incarceration credit, a $100
trauma fund charge was a “fine,” for purposes of presenting incarceration credit,
and a $5 spinal cord trauma fund charge was a “fine”); People v. Blanchard, 2015
IL App (1st) 132281, ¶ 22 (holding that a $50 court system fee is actually a fine);
People v. Maxey, 2016 IL App (1st) 130698, ¶¶ 140-41 (holding that a $15 state
police operations fee is actually a fine), vacated on other grounds, No. 121137 (Ill.
Nov. 22, 2017) (supervisory order); People v. Graves, 235 Ill. 2d 244 (2009)
(holding that a county mental health court fee and a youth diversion/peer court fee
were properly viewed as fines); People v. Price, 375 Ill. App. 3d 684 (2007)
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(holding that the $10 mental health court fee and the $5 youth diversion/peer court
fee are fines); People v. Millsap, 2012 IL App (4th) 110668 (holding that, despite
its statutory label, the State Police operations assistance fee is a fine); People v.
Hible, 2016 IL App (4th) 131096 (holding that a court systems assessment is a
fine); Larue, 2014 IL App (4th) 120595 (holding that the medical costs assessment
is a fine); People v. Jernigan, 2014 IL App (4th) 130524 (holding that the
anti-crime fund and Violent Crime Victims Assistance Act (725 ILCS 240/1 et seq.
(West 2008)) assessments are fines). This court has found that, regardless of the
terms used by the legislature, when determining whether a charge is a fine or a fee,
the attributes of the charge are most important, i.e., if it is intended to reimburse the
state for some cost incurred in defendant’s prosecution. Jones, 223 Ill. 2d at
599-600; Graves, 235 Ill. 2d at 250-51.
¶ 45 Given the complex history of the legislature mislabelling fines and fees,
treating fines differently than fees for purposes of determining the court’s power to
correct an unauthorized assessment would clearly yield results that are absurd,
inequitable, and unjust. If the clerk labels an assessment a fine but in reality it is a
fee, under a narrow reading of the Clerks of Courts Act, it would not be
incorporated into the record on appeal, and defendant gets no relief from the
improperly assessed fee. Had it been properly labeled a fee, defendant would get
relief. On the other hand, if the clerk labels an assessment a fee but in reality it is a
fine, that “fee” would be incorporated into the judgment pursuant to the Clerks of
Courts Act, and accordingly, a defendant gets relief, even though it is actually a fine
not encompassed by a narrow reading of the Clerks of Courts Act. The
aforementioned flaws with the legislature’s labeling of fines and fees, which the
majority fails to address, makes it completely illogical to read this Act as excluding
“fines” assessed by the clerk from being incorporated into the record and judgment.
¶ 46 The majority has also deliberately chosen not to recognize an essential
component of this case, namely that not all of defendant’s assessments are labeled
as fines by the legislature. The “Court” assessment, which was required by a county
ordinance, is labeled as a fee. 55 ILCS 5/5-1101(c)(1) (West 2014). The “Youth
Diversion” assessment, also required by a county ordinance, is labeled by that
ordinance as a fee. 55 ILCS 5/5-1101(e)(2) (West 2014). Two of the assessments
are not clearly labeled as either fines or fees. The “Medical Costs” assessment is
referred to as a “reimbursement” by the legislature (730 ILCS 125/17 (West 2014)),
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while the “State Police Ops” assessment was discussed in the statute as
“compensation” (705 ILCS 105/27.3a (West 2014)). The remaining assessments
are labeled as fines by the legislature. 725 ILCS 240/10(b)(1) (West 2014); 730
ILCS 5/5-9-1(c) (West 2014); 730 ILCS 5/5-9-1.7(b)(1) (West 2014). Thus, under
the majority’s analysis, the appellate court would have jurisdiction over the
assessments labeled “fees” by the legislature. However, the majority, inconsistent
with its own analysis, finds the appellate court lacked jurisdiction to address any of
these assessments, even the ones labeled “fees” by the legislature.
¶ 47 Illinois courts do not always agree with the legislature’s labeling of assessments
as fines or fees; thus, judicial review is necessary in cases like defendant’s where
the assessments authorized by statute are not labeled as fines. If this court, and for
that matter the appellate court, did not review cases such as this, there would be no
judicial determination as to the category of the assessment being imposed against
defendant. “Over the years, more and more costs have been passed on to court
patrons through an elaborate web of fees and fines that are next to impossible to
decipher and severely lacking in uniformity and transparency.” Statutory Court Fee
Task Force, supra introduction, at 7.
¶ 48 If our task force finds these fees nearly impossible to decipher, there is no logic
in prohibiting our courts on direct appeal from correcting these confusing and
illegal assessments. This problem will only continue to spiral out of control as a
result of the majority’s holding. In cases like defendant’s, where the assessments
have been labeled by the legislature as a mixture of fines and fees, the majority’s
holding would, at most, only allow us to correct some of the illegally imposed
assessments. If the case is already properly before this court, it seems to do so
would be an undeniable burden on not only defendants, who would have to file a
writ of mandamus to handle the other assessments, but also on our judicial system,
which would have to expend the resources to hear the same case again.
Unfortunately, those wasted resources could be used to procure a determination the
court should have made in the first place.
¶ 49 Clearly, defendant’s notice of appeal indicated the judgment and sentence from
which he was appealing and gave the appellate court jurisdiction to resolve the
issue of fines illegally imposed by the clerk. See Ill. S. Ct. R. 366 (eff. Feb. 1, 1994)
(granting the same powers of amendment held by the trial court to courts of
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review). To reach any other conclusion would result in an undue burden on
defendants, an affront to the administration of justice, and a conflict with judicial
economy. This case, like others, highlights the convoluted system of fines and fees
for criminal defendants and their often futile quest to have errors corrected. The
majority’s analysis lacks sufficient justification and explanation to undercut the
power and long-standing authority we have given to the appellate court to correct
mistakes, such as these illegal assessments, and does so at the expense of
defendants faced with an elaborate maze of all too often void fines and fees. In
People v. Caballes, 221 Ill. 2d 282, 313 (2006), this court stated that “it is more
important that the applicable rule of law be settled than it be settled right.” (Internal
quotation marks omitted.) Unfortunately for the majority, and Illinois residents, the
majority’s disposition is neither right, nor will it leave the law settled. Therefore, I
join Justice Thomas’s dissent.
¶ 50 JUSTICE THOMAS joins in this dissent.
¶ 51 JUSTICE THOMAS, dissenting:
¶ 52 For over three decades, the Illinois courts have been dealing with the problem
of circuit clerks improperly imposing fines or fees that are required to be imposed
by the judiciary. See, e.g., People v. Tarbill, 142 Ill. App. 3d 1060, 1061 (1986).
The problem continues to this day, with no sign of abating. See, e.g., People v.
Matthews, 2017 IL App (4th) 150911, ¶¶ 46-48 (vacating various fines imposed by
the circuit clerk because such fines are “void from their inception” (internal
quotation marks omitted)). For decades, it was common practice for the State to
confess error in these cases, and no one seriously questioned the proposition that a
reviewing court that has obtained jurisdiction over a criminal case through a timely
filed notice of appeal could vacate fines illegally assessed by a circuit clerk.
¶ 53 Things changed in People v. Gutierrez, 2012 IL 111590, when the State argued
that reviewing courts lack jurisdiction to vacate illegal assessments by circuit
clerks. This court rejected the State’s argument unanimously and explained that,
when the clerk assesses a fine or fee required to be imposed by the judiciary, the
assessment is void. Id. ¶ 14. Therefore, a reviewing court having jurisdiction over
the case may vacate the void assessment. Id. Today, this court is presented with the
exact same jurisdictional arguments that it rejected in Gutierrez. Rather than follow
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stare decisis, however, this court overrules Gutierrez without even mentioning
stare decisis principles. The court announces today that reviewing courts may wash
their hands of this entire matter and that defendants who are unhappy with circuit
clerks imposing illegal fines upon them will have to sue the circuit clerk. Supra
¶ 31. Defendants will have to bring entirely separate mandamus suits to have these
fines vacated, and they will have no constitutional right to counsel in such
proceedings. See Doherty v. Caisley, 104 Ill. 2d 72, 76 (1984). This is precisely the
type of burden Gutierrez said it would not impose upon defendants. Gutierrez,
2012 IL 111590, ¶ 14 n.1. The majority misunderstands the relationship between
courts and circuit clerks, and this has led it to issue an opinion that is both wrong as
a matter of court power and unconscionable as a matter of policy.
¶ 54 I. The Circuit Clerk Assessed Fines Against Defendant
¶ 55 Before examining why the majority’s jurisdictional analysis is wrong, we need
to be clear about what happened in this case. The circuit clerk improperly assessed
several fines against defendant. As the majority notes, a fine is considered part of a
defendant’s sentence, and therefore only a judge may impose a fine. Supra ¶ 14.
Thus, when reviewing courts are faced with fines imposed by the circuit clerk, the
approach has always been to recognize that such fines are void and to vacate them.
See, e.g., Matthews, 2017 IL App (4th) 150911, ¶¶ 46-48.
¶ 56 In this case, the State makes a new question-begging argument that the majority
finds compelling. The State contends that, because clerks are not authorized to
impose fines, the clerk in this case did not impose the fines. The State explains that
this case merely involves erroneous references to fines. The State claims that we
are dealing with data entries in the clerk’s accounts receivable records that
reference certain fines. However, according to the State, these fines were neither
assessed nor imposed because the clerk lacks the authority to impose fines. Instead,
this case merely involves mistakes that a clerical employee made when listing the
fines imposed by the court.
¶ 57 The majority apparently does not fully agree with the State’s characterization of
the clerk’s actions and is at least willing to acknowledge that something of
consequence happened. The majority acknowledges that the fines at issue were
“charged to defendant.” Supra ¶ 5. Moreover, the majority states that “the clerk’s
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action was improper” and refers to the fines as “unauthorized fines.” (Emphasis
added.) Supra ¶ 23. The majority also suggests that defendant bring a mandamus
action against the circuit clerk. Supra ¶ 31. A mandamus action would be
unnecessary if the clerk did not do anything of any concern to defendant. However,
in perhaps trying to meet the State halfway, the majority claims that what happened
here was “the erroneous recording of the circuit court’s judgment.” Supra ¶ 30.
According to the majority, because courts impose judgments and clerks record
them, this case cannot involve anything other than the erroneous recording of a
judgment. Thus, “[b]ecause the circuit clerk had no authority to levy any fines
against defendant, the recording of the additional fines was invalid and
unenforceable.” (Emphasis added.) Supra ¶ 23. It is not clear how the recording of
a fine can be unenforceable; clearly it is the illegal fine itself that is unenforceable.
¶ 58 What is happening in these cases is that the circuit clerk is imposing fines that it
is not authorized to impose. An important part of the clerk’s job is assessing fees
and costs. What the payment status information sheet shows is that, when the clerk
assessed fees it was authorized to assess, it also assessed certain fines that it was not
authorized to assess. As the appellate court noted in People v. Warren, “We
recognize it is the long-standing practice of the circuit court clerks to impose the
fees and costs associated with criminal cases, but this does not excuse the similar
treatment of fines, which are a component of the sentence to be imposed by the
sentencing judge.” 2014 IL App (4th) 120721, ¶ 171, vacated on other grounds,
No. 118322 (Ill. Jan. 20, 2016) (supervisory order). How do we know that the clerk
assessed the fines? Because they are in the circuit clerk’s accounts receivable
despite the court not having imposed them. See, e.g., People v. Larue, 2014 IL App
(4th) 120595, ¶ 56 (“A computer printout, however, reveals that for each of
defendant’s two convictions, the circuit clerk imposed the following assessments,
which constitute fines ***.”). The effect of the court imposing the fines would be
that they would be entered into the clerk’s accounts receivable as a debt owed by
defendant. That is exactly what happened here, despite the fact that the court did
not assess the fines. It defies reason to argue that these are simply clerical errors and
that an employee of the clerk’s office simply recorded the court’s judgment
incorrectly. That would require us to believe that, when attempting to enter into the
accounts receivable the fines that the court had imposed, the employee accidentally
listed several fines that the court did not impose and these just happened to be the
very fines that were mandatory in defendant’s case. It would be remarkable for that
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to happen even once, and it is absurd to claim that this is a systemic problem that
has been occurring for decades. Clearly what is happening in these cases is that the
clerk knows that the fines are mandatory and thus assesses them along with the fees
that it assesses against defendants. Such fines do not end up in the clerk’s accounts
receivable because employees do not know how to copy judgments correctly; they
end up there because clerks believe they have the authority to assess mandatory
fines against defendants.
¶ 59 The State’s contention that someone could not have done something because
they were not authorized to do it should be rejected out of hand. One suspects that
the State would not be too receptive to an argument from a criminal defendant that
he could not have committed a certain act because it was against the law. Could a
drug dealer successfully claim that he was not selling OxyContin because he is not
a pharmacist? Is it a defense to a claim that someone is committing the
unauthorized practice of law that he could not have been practicing law because he
is not an attorney? Or take the case before us. The State argues that the appellate
court did not have jurisdiction in this case because the court has jurisdiction to
review only final orders of the circuit court. The State contends that the appellate
court has no jurisdiction over actions of the circuit clerk that are not embodied in a
court order. If the State’s authority argument is correct, that means that the
appellate court did not actually vacate the fines because it had no authority to do so.
Thus, we should simply dismiss the State’s petition for leave to appeal as
improvidently granted. But that is not the relief that the State wants; the State wants
the appellate court opinion vacated because it believes that the court acted beyond
its authority. Similarly, defendant wants the fines assessed by the clerk vacated
because the clerk acted beyond its authority. It is simply nonsensical to argue that
someone did not do something because that person was not authorized to do it.
What happened here is the same thing that has been happening for decades. When
the clerk assessed fees it was allowed to assess, it also assessed certain fines that it
was not authorized to assess. Therefore, those assessments are void and may be
vacated by a court having jurisdiction over the case. Since at least 1864, this court
has recognized that when a clerk performs an act that is required to be performed by
a judge, that act is “unauthorized and void.” Hall v. Marks, 34 Ill. 358, 363 (1864).
Today, the majority instead holds that when a clerk performs an act that is required
to be performed by a judge, the clerk did not perform the act.
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¶ 60 It should be noted that the majority’s holding will apply not only to issues
involving fines that the clerk is not allowed to assess but also to fees that the clerk is
allowed to assess. People v. Smith, 2014 IL App (4th) 121118, shows the types of
issues that can arise with respect to fees that the clerk is empowered to assess. In
Smith, the defendant supplemented the record with a clerk’s fines and information
sheet that listed several assessments that the clerk had issued after sentencing. Id.
¶ 10. The defendant challenged several of the fees on the basis that only one such
fee was allowed per case but the clerk had imposed them on each count. The
appellate court agreed with the defendant that the clerk had improperly assessed
duplicate automation fees, circuit-clerk fees, court-security fees, and document
storage fees. Thus, the court vacated all of the duplicate fees. Id. ¶¶ 23-31.
Presumably, this will no longer be allowed under the majority opinion. While the
clerk had the authority to assess these fees, it erroneously assessed multiple ones
where only one was allowed. However, the duplicate fees were brought to the
court’s attention by way of a “circuit clerk’s fees and fines information” that was
filed as a supplemental record. Id. ¶ 10. As these fees were not listed in the circuit
court’s final judgment, presumably the majority would hold that the appellate court
lacked jurisdiction to vacate the duplicate fees. The appellate court is also
frequently called upon to resolve issues involving whether certain assessments
should be considered fees or fines. Many of these cases will now be off the table as
well. Moreover, what will become of the assessments in cases in which a defendant
has his or her conviction reversed or vacated? Will the assessments remain on the
books unless a defendant brings a separate mandamus action to have them vacated?
¶ 61 II. The Appellate Court Had Jurisdiction Over the Entire Case
¶ 62 The State argues that defendant could not appeal from the clerk’s payment
status information. Defendant did not purport to do so. Rather, he timely filed a
notice of appeal from the final judgment in his criminal case. When a defendant
timely files a notice of appeal in a criminal case, it brings up his entire conviction
and sentence for review. People v. Lewis, 234 Ill. 2d 32, 38-39 (2009). Thus, the
question is not whether a criminal defendant may appeal from a payment status
information; the question is whether a reviewing court that has obtained
jurisdiction over a criminal case by means of a timely filed notice of appeal may
vacate illegal fines that were assessed by the circuit clerk in the case under review.
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¶ 63 The answer is unquestionably yes, because the clerk’s assessments are
considered part of the record and judgment. Although not raised by either party in
Gutierrez or the present case, section 16 of the Clerks of Courts Act requires the
circuit clerk to maintain a fee book in which fees and costs are recorded, and that
section provides that the fee book “shall be considered a part of the record and
judgment, subject, however, at all times to be corrected by the court.” (Emphasis
added). 705 ILCS 105/16(5) (West 2016). So the majority’s entire reason for
finding no jurisdiction is simply wrong. Section 16(5) makes clear that the
assessments that the clerk makes at the end of a case are considered part of the
record and judgment. Here, the clerk assessed the fines along with the fees and
costs it was allowed to assess, and therefore section 16(5) makes them part of the
record and judgment. Section 16(5) also shows that the majority is wrong when it
states that the appellate court erred in allowing defendant to supplement the record
with the payment status information. Supra ¶ 22. Because the circuit clerk’s
assessments are considered part of the record and judgment, the appellate court
obviously did not err in allowing defendant to provide a record of the assessments.
The majority’s assertion that the clerk’s assessments in defendant’s case are
“extraneous materials” (supra ¶ 22) is manifestly incorrect. The clerk’s
assessments are incorporated into the record by statute, and thus they clearly fall
within the purview of Rule 329. Ill. S. Ct. R. 329 (eff. Jan. 1, 2006).
¶ 64 The majority contends that section 16(5) has “no purchase within the context of
this case” (supra ¶ 26) because it does not mention fines. But section 16(5) does not
mention fines because circuit clerks are not entitled to impose fines. The legislature
is not going to enact a statute requiring the clerk to maintain a book in which it
assesses fees, costs, and illegal fines. If the fee book is made part of the record and
judgment, then whatever is recorded therein is part of the record and judgment. So,
in sum, the majority’s position is this: (1) the circuit clerk is not authorized to
assess fines, and (2) the court will not enforce the statute making the clerk’s
assessments part of the record and judgment because the statute does not list fines
among the assessments the clerk should enter. How does one respond to an
argument like this?
¶ 65 Moreover, as the majority well knows, it is not always clear what is a fee and
what is a fine, and reviewing courts spend a significant amount of time resolving
these issues. The point is that the statute provides that the assessments that the clerk
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makes at the end of the case are treated as part of the record and judgment. Here, the
clerk imposed the illegal fines along with the fees and costs it was entitled to
impose. It cannot be the case that their very illegality is what puts them beyond the
reach of the court. If the majority’s reading of the statute is correct, that would
mean that a reviewing court could properly have before it an issue involving a fee
assessed by the circuit clerk. However, if the court later concludes that what was
labeled a fee is actually a fine, it would then have to conclude that the assessment
was no longer part of the record and dismiss the appeal for lack of jurisdiction. The
majority cannot possibly believe this.
¶ 66 The majority also claims that interpreting the statute as meaning what it says
would defeat the very crux of defendant’s argument, which is that the fines were
invalid because they were not part of the court’s final judgment. Supra ¶ 27. To be
clear, defendant’s argument is that the fines are invalid because they were imposed
by the circuit clerk. Nothing in section 16(5) means that fines do not have to be
imposed by the circuit court. Section 16(5) simply recognizes that there are certain
assessments that Illinois law allows the clerk to make and these are effectively
appended to the court’s judgment. The statute does not allow the clerk to usurp the
trial court’s function and impose assessments that are required to be imposed by the
court.
¶ 67 For the same reason, the majority is incorrect that this position is inconsistent
with Gutierrez, a case that the majority overrules. Supra ¶ 28. Gutierrez held that
the public defender fee was void because it was imposed by the circuit clerk and not
by the circuit court. Gutierrez, 2012 IL 111590, ¶ 14. The effect of section 16(5) is
to statutorily append the clerk’s assessments to the judgment and also to make them
part of the record. It in no way means that these assessments were imposed by the
circuit court, and it does not allow the clerk to perform a judicial function.
¶ 68 But let us assume that the majority is correct that we may not read the statute as
allowing the fee book to become part of the judgment because that would amount to
a grant of judicial power to circuit clerks. Supra ¶ 27. Out of an abundance of
caution, we can read the words “and judgment” completely out of the statute. If we
do so, section 16(5) still provides that the clerk’s assessments are considered part of
the record. The majority does not contest the legislature’s authority to make the
assessments part of the record. Thus, regardless of whether the assessments are
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considered part of the judgment, they are considered part of the record and
therefore are properly before the reviewing court. That is really the end of the ball
game for the majority’s argument. And a reviewing court’s power in a criminal
case is not limited to acting on the judgment before it. Rather, it may “set aside,
affirm, or modify any or all of the proceedings subsequent to or dependent upon the
judgment or order from which the appeal is taken.” Ill. S. Ct. R. 615(b)(2).
¶ 69 The legislature’s obvious intent in this part of section 16(5) is to ensure that the
clerk’s assessments pursuant to a judgment of conviction and sentence are
considered part of a defendant’s case. Again, this is something that is just obvious
even without the statute and was virtually universally understood until today. The
clerk’s assessments are properly considered part of the record before the reviewing
court, and a reviewing court having jurisdiction over the case has the authority to
act on them.
¶ 70 III. Gutierrez
¶ 71 Even if section 16(5) did not exist, the majority would still be wrong for the
reasons explained by this court in Gutierrez. Gutierrez provides an independent
rationale for a reviewing court’s authority to vacate unauthorized assessments by
the circuit clerk. In Gutierrez, a unanimous court addressed and rejected the same
arguments that the State makes in this case. Gutierrez involved a circuit clerk’s
imposition of a public defender fee that was required to be imposed by the court.
The State argued that the appellate court was without jurisdiction to vacate the fee
for two reasons: (1) because the assessment was made by the clerk, it was not
embodied in a circuit court order, and (2) defendant’s notice of appeal did not
indicate that he was appealing any fines or fees. Gutierrez, 2012 IL 111590, ¶ 7.
These are the same arguments that the State makes in the present case. Gutierrez
rejected both of these arguments and held that a defendant’s notice of appeal that
does not indicate that he is appealing anything other than his conviction properly
brings up his entire conviction and sentence for review. Id. ¶ 12. If the clerk has
assessed a fine or fee that was required to be imposed by the judiciary, the fine or
fee is void and may be vacated by a court having jurisdiction over the case. Id. ¶ 14.
¶ 72 The majority overrules Gutierrez without even mentioning stare decisis
principles. Presumably, the majority believes that if you do not use the word
“overruled” a discussion of stare decisis is unnecessary. When a court holds in one
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case the exact opposite of what it held in a previous case, it has overruled the case
whether or not it uses the word “overruled.” Thus, stare decisis is implicated here.
¶ 73 The doctrine of stare decisis expresses the policy of courts to stand by
precedent and to avoid disturbing settled points. People v. Sharpe, 216 Ill. 2d 481,
519 (2005). It is the means by which courts ensure that the law will not merely
change erratically but will develop in a principled and intelligible fashion. Chicago
Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994). “ ‘[A]
question once deliberately examined and decided should be considered as settled
and closed to further argument ***.’ ” Wakulich v. Mraz, 203 Ill. 2d 223, 230
(2003) (quoting Prall v. Burckhartt, 299 Ill. 19, 41 (1921)). Any departure from
stare decisis must be specially justified. Tuite v. Corbitt, 224 Ill. 2d 490, 505
(2006). A court will not depart from stare decisis merely because it would have
decided otherwise if the question were a new one. People v. Colon, 225 Ill. 2d 125,
146 (2007). Thus, prior decisions will not be overruled absent good cause or
compelling reasons to do so. Id.
¶ 74 Although the majority does not discuss stare decisis, we can infer from its
analysis what it believes the “good cause” would be to overrule Gutierrez. The
majority claims that “the legal landscape has changed dramatically since Gutierrez
was decided” (supra ¶ 25) and argues that Gutierrez was undermined by two
subsequent decisions of this court, People v. Castleberry, 2015 IL 116916, and
People v. Hardman, 2017 IL 121453. Unfortunately for the majority, these cases
have absolutely no bearing on Gutierrez’s jurisdictional analysis.
¶ 75 The majority claims that Gutierrez was “premised” on the void sentence rule
and therefore Castleberry’s abolition of the void sentence rule undermined
Gutierrez’s jurisdictional analysis. Supra ¶ 24. In truth, Gutierrez had nothing at all
to do with the void sentence rule, and therefore Castleberry is not relevant to
Gutierrez’s jurisdictional analysis. Gutierrez clearly stated that it agreed with the
defendant that the assessment was void because the “circuit clerk acted beyond its
authority in imposing” it. (Emphasis added.) Gutierrez, 2012 IL 111590, ¶ 14. The
majority concedes this very point when it states that the voidness of the clerk’s
action in Gutierrez was “based on the fact that the clerk lacked authority to impose
such a fee.” (Emphasis added.) Supra ¶ 28. The void sentence rule held that a
judicial sentence that does not conform with statutory requirements is void.
- 25 ­
Castleberry, 2015 IL 116916, ¶ 1. As this court explained in People v. Price, 2016
IL 118613, ¶ 31, the only type of voidness affected by Castleberry is where a trial
court’s judgment of sentence does not conform to a statutory requirement. Given
that the majority insists that the clerk’s assessments were not part of the trial court’s
judgment of sentence, it is not clear how the majority can believe that Castleberry
is relevant to this situation. I invite the majority to cite the portions of Price and
Castleberry that discuss unauthorized assessments by circuit clerks. Here, the fines
assessed by the clerk are void because the clerk attempted to exercise a power
reserved to the judiciary. This has nothing to do with the void sentence rule. As the
appellate court correctly stated in People v. Hible, 2016 IL App (4th) 131096, ¶ 11,
“Castleberry does not change the outcome here. Fines imposed by the circuit clerk
are still void.” Hible correctly recognized that clerk-imposed fines are void not
because of the void sentence rule but because the clerk is attempting to perform a
judicial function. Id. ¶¶ 11-12; see also People v. Wade, 2016 IL App (3d) 150417,
¶ 12 (“The fines in this case were void, not because they failed to conform with
statutory requirements, but because they were imposed not by the trial court, but by
the circuit clerk. Castleberry’s abolition of the void sentence rule, therefore, is of
no consequence to the issue of whether the fines are void.”); People v. Warren,
2017 IL App (3d) 150085, ¶ 35 (McDade, J., dissenting) (“there is not an open
question as to whether clerk-imposed fines are void. Castleberry abolished the void
sentence rule; it did not call on courts to reconsider the very concept of voidness.”),
vacated, No. 122639 (Ill. Nov. 22, 2017) (supervisory order).
¶ 76 The appellate court has correctly recognized in multiple cases that Castleberry
has no bearing at all on whether clerk-imposed fines are void. How, then, did a
majority of this court conclude that Gutierrez was based on the void sentence rule
when it so clearly was not? The majority claims that Gutierrez was premised on the
void sentence rule because it cited People v. Thompson, 209 Ill. 2d 19, 25 (2004).
Supra ¶ 24. The State makes the same erroneous argument in its brief. Gutierrez,
however, cited Thompson only for the boilerplate proposition that “a void order
may be attacked at any time or in any court, either directly or collaterally.” See
Gutierrez, 2012 IL 111590 ¶ 14. It is not clear where the majority got the idea that
every case cited for a boilerplate legal proposition must necessarily involve the
same issue as the case under consideration. To demonstrate the obvious falsity of
such a claim, we merely need to look at Thompson. Thompson involved the void
sentence rule, but it cited Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95,
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103 (2002), for the boilerplate proposition that a void order may be attacked at any
time or in any court. Thompson, 209 Ill. 2d at 25. Sarkissian involved a civil default
judgment that was alleged to be void because of defective service of process.
Sarkissian, 201 Ill. 2d at 96. Would anyone ever claim that Thompson was
“premised” on the rule that a default judgment is void when service of process is
defective? Of course not, but that is precisely what the majority is doing here when
it claims that Gutierrez was premised on the void sentence rule. It is telling that, had
Gutierrez simply cited Sarkissian instead of Thompson, the majority’s entire
analysis would fall apart.
¶ 77 It is worth noting, too, that this court has already indicated what it viewed of the
argument that Castleberry undermined Gutierrez. In Warren, 2017 IL App (3d)
150085, a panel of the Appellate Court, Third District, announced that it was no
longer going to follow Gutierrez. The court set forth the same jurisdictional
analysis adopted by the majority today (id. ¶¶ 21-22) and contended that Gutierrez
had been undermined by Castleberry (id. ¶ 20). The defendant petitioned this court
for leave to appeal. Now, one would think that if a majority of this court found these
arguments compelling, the court would have allowed the petition for leave to
appeal so that it could address them. Instead, the court vacated the appellate court
opinion in a supervisory order and ordered it to address the defendant’s arguments
on the merits. People v. Warren, No. 122639 (Ill. Nov. 22, 2017) (supervisory
order). Of course, supervisory orders are not relevant for purposes of stare decisis,
but the order clearly shows an inconsistency in this court’s thinking over whether
Castleberry undermined Gutierrez. At a minimum, the majority should explain
what principles of appellate jurisdiction have changed since November.
¶ 78 As bad as the majority’s reliance on Castleberry is, its reliance on Hardman is
worse. The majority has to know that Hardman has nothing at all to do with
Gutierrez’s jurisdictional analysis. The majority notes that Hardman “discussed”
Gutierrez and references paragraph 55 of Hardman (Hardman, 2017 IL 121453,
¶ 55). Supra ¶ 25. In this paragraph, the Hardman court was not discussing
Gutierrez’s jurisdictional analysis. Rather, it involved the second issue in
Gutierrez, which was whether the cause should have been remanded for the
imposition of a public defender fee. See Hardman, 2017 IL 121453, ¶ 55. In
Gutierrez, the court elected not to remand because the fee had been imposed by the
circuit clerk, and neither the State nor the circuit court was seeking a public
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defender fee. Gutierrez, 2012 IL 111590, ¶ 24. In Hardman, by contrast, the circuit
court was seeking to impose a public defender fee, but it had not held the necessary
hearing beforehand. Hardman, 2017 IL 121453, ¶ 48. Thus, Gutierrez was
distinguished on the basis that the record in that case “did not indicate that the
circuit court was considering ordering the imposition of a public defender
reimbursement fee” and “ ‘the statute clearly does not contemplate the State asking
for a public defender fee for the first time when the case is on appeal.’ ” Id. (quoting
Gutierrez, 2012 IL 111590, ¶ 23).
¶ 79 How, then, does the majority make Hardman relevant to this case? The
majority focuses on the following sentence: “And because there was no circuit
court order for reimbursement of a public defender fee, the appellate court could
not remand for a hearing on an order that did not exist.” Id. According to the
majority, when Hardman used this line, it was recognizing “the fundamental
distinction between a court order and the ministerial action of a circuit clerk.”
Supra ¶ 25. Again, as explained above, the relevant sentence from Hardman means
nothing more than that the court was seeking the fee in one case and not in the
other. What the majority appears to be doing here is attempting to validate the
State’s preoccupation with one particular line in Gutierrez, when the court said an
appellate court having jurisdiction over a criminal case had jurisdiction to act on
“void orders of the circuit clerk.” Gutierrez, 2012 IL 111590, ¶ 14. The State
contends that clerks do not enter orders, and the majority is now implying that our
intent in Hardman when we wrote the above sentence about “an order that did not
exist” was to repudiate Gutierrez.
¶ 80 What Hardman was referring to was a court order. Whether or not a court
order exists is of crucial importance on the question of whether a case may be
remanded for imposition of a public defender fee, because such a remand is
appropriate only if the court or the State is seeking such a fee. Again, the sentence
in Hardman reads, “And because there was no circuit court order for
reimbursement of a public defender fee, the appellate court could not remand for a
hearing on an order that did not exist.” (Emphasis added.) Hardman, 2017 IL
121453, ¶ 55. Because there was no circuit court order imposing a public defender
fee in Gutierrez, a remand was not appropriate. The fact that there was no circuit
court order was fully acknowledged in Gutierrez and was the very basis for its
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holding. But, according to the majority, Hardman undermined Gutierrez simply by
repeating exactly what Gutierrez said.
¶ 81 When Gutierrez used the phrase “void orders of the circuit clerk,” of course it
was not saying that circuit clerks could enter court orders. Gutierrez, 2012 IL
111590, ¶ 14. The word “order” can mean either (1) “[a] command, direction, or
instruction” or (2) “[a] written direction or command delivered by a court or
judge.” Black’s Law Dictionary 1206 (9th ed. 2009). Clearly, Gutierrez was using
the word in its former sense. 3 See also, e.g., People v. Bowen, 2015 IL App (1st)
132046, ¶ 68 (“we direct the clerk of the circuit court to correct the fines and fees
order to reflect that defendant’s presentence custody credit satisfies his $30
Children’s Advocacy Center fine”). Are five members of this court really claiming
that six years ago they believed that circuit clerks could issue court orders? If there
is any doubt at all that Gutierrez was using the term in its former sense, one merely
needs to read the parenthetical to the citation that follows the disputed sentence,
which reads, “just as a void order may be attacked at any time, [the] appellate court
could address [a] forfeited argument that [the] circuit clerk acted beyond its
authority in imposing a fine.” (Emphasis added.) Gutierrez, 2012 IL 111590, ¶ 14.
Thus, the disputed paragraph in Gutierrez is simply saying that courts may act on
void assessments of the circuit clerk under the same principles that allow them to
act on void court orders. In hindsight, it probably would have been preferable for
Gutierrez to use the phrase “void assessments of the circuit clerk” or “void actions
of the circuit clerk,” but no one could have foreseen the misrepresentations that
would be made about the court’s holding. Regardless of the term used, however,
Gutierrez’s holding remains entirely valid. Once one concedes the obvious point
that Gutierrez was not saying that circuit clerks could issue court orders, one also
has to concede that Hardman is not even remotely relevant to Gutierrez’s
jurisdictional analysis.
3
The State claims that even this usage of the term is incorrect because the entry of the disputed
fines into the clerk’s accounts receivable did not purport to direct, command, or instruct anyone to
do anything. As explained in detail above, an important part of the clerk’s job is to assess fees and
costs, and the clerk assessed these fines in the same way that it assesses things that it is allowed to
assess. An assessment is the “imposition of something, such as a tax or fine, according to an
established rate” (emphasis added) (Black’s Law Dictionary 133 (9th ed. 2009)), and the majority
concedes that the fines were “charged to defendant” (supra ¶ 5).
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¶ 82 Neither Castleberry nor Hardman has the slightest application here, and thus
the majority has not demonstrated good cause to depart from stare decisis. Not only
has the legal landscape not “changed dramatically” (supra ¶ 25) with regard to
Gutierrez’s jurisdictional analysis, it has not changed at all. Rather, the court has
simply changed its mind and is now accepting arguments that it previously rejected.
In his passionate defense of stare decisis principles in his dissent in People v.
Mitchell, 189 Ill. 2d 312, 399 (2000) (Freeman, J., dissenting, joined by Harrison,
C.J., and McMorrow, J.), Justice Freeman stated, “If this court can so cavalierly
disregard its own precedent, we surely cannot expect others to follow it nor can we
justly criticize those who do not. Today’s imprudent action invites nothing but open
defiance of our precedent and seriously undermines this court’s legitimacy.” The
Third District’s opinion in Warren shows that Justice Freeman’s fears were not
unfounded. The State apparently felt free to raise in the appellate court arguments
that this court had already rejected, and the majority in that case stated that it would
no longer follow Gutierrez absent further guidance from this court. Warren, 2017
IL App (3d) 150085, ¶¶ 19-20. Warren’s defiance forced the dissenting justice in
that case to point out that “Gutierrez is substantively identical to the present case.
While the majority may disagree with the result in that case, or wish to see it
revisited, this court is nevertheless legally obligated to follow that precedent and
conclude that defendant may challenge the present assessments.” Id. ¶ 46
(McDade, J., dissenting). With the court today showing that it does not care if we
unanimously put this issue to rest six years ago and showed our continued
adherence to our position just six months ago, the open defiance that Justice
Freeman feared will surely only get worse.
¶ 83 IV. Courts Have Inherent Authority to Correct Mistakes of the Circuit Clerk
¶ 84 Let us now assume for the sake of argument that everything that the State
claims is true. In other words, the circuit clerk did not assess any fines against
defendant, and all that happened here is that an employee incorrectly entered some
data into the clerk’s accounts receivable. Or, as the majority put it, the clerk’s
action was “not the entry of a judgment but was, instead, the erroneous recording of
the circuit court’s judgment.” Supra ¶ 30. Even if we fully concede these points, the
appellate court still had the authority to correct the clerk’s errors. It is a
well-established legal principle that the courts have broad authority to correct the
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clerk’s records. As this court explained in In re Estate of Young, 414 Ill. 525, 534
(1953), “this court has recognized the inherent power of the court to correct the
clerk’s records so that they correctly reflect the actual judgment rendered by the
court, when the judge has a definite and certain record as a basis for the
amendment.” Moreover, such corrections may be made at any time. As this court
explained in People ex rel. Wonogas v. Holmes, 312 Ill. 284, 286 (1924):
“Whether it is a misprision of the clerk or a malfeasance, the court has power at
all times, upon notice given, to reform its records, so as to make them speak the
truth. No reason suggests itself why such amendments may not be made at any
time, as long as anything definite and certain remains as a basis for the
amendment.” (Emphases added.)
See also Moore v. Shook, 276 Ill. 47, 53 (1916) (“The court may, even after the
expiration of the term at which a judgment was rendered, correct or amend the entry
thereof so as to make it conform to the judgment which the court actually
rendered.”); People ex rel. Waite v. Bristow, 391 Ill. 101, 115 (1945) (“After the
expiration of the term, unless the cause is still pending and the parties are in court,
[the court’s] power over the record is confined to errors and mistakes of their
officers ***.”); West Chicago Park Commissioners v. Boal, 232 Ill. 248, 252
(1908) (“the defect being one which arose from a mistake of the clerk in writing the
record, it could be rectified by the court at any time so as to make the record speak
the truth”).
¶ 85 The United States Supreme Court has also recognized this power as inherent in
all courts: “The power to amend its records, to correct mistakes of the clerk or other
officer of the court, inadvertencies of counsel, or to supply defects or omissions in
the record, even after the lapse of the term, is inherent in courts of justice ***.”
(Emphases added.) Gagnon v. United States, 193 U.S. 451, 456 (1904). Thus, a
court’s power to correct mistakes of the clerk is inherent, plenary, and ongoing.
And it is just obvious that this has to be the case because the clerk is the court’s
administrative arm and is thus subject to judicial control. As this court explained in
People ex rel. Pardridge v. Windes, 275 Ill. 108, 113 (1916):
“The position of counsel that the writing of the record is a ministerial act and
that the clerk is a ministerial officer of the court is correct, but he is not
independent of the court and his entry of the orders made by the court is subject
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to judicial control. He is not privileged to enter orders as he sees fit, contrary to
the direction of the court.”
See also Moore, 276 Ill. at 53 (“ ‘That which the court performs judicially or orders
to be performed is not to be avoided by the action or want of action of the judges or
other officers of the court in their ministerial capacity.’ ” (quoting 1 Abe C.
Freeman, A Treatise on the Law of Judgments § 38 (4th ed. 1892)); Hall, 34 Ill. at
363 (the circuit clerk is “only a ministerial officer of a court. He is only the
instrument the law has designated, for convenience and the dispatch of business, to
record the determination and sentence of the court.”).
¶ 86 Thus, it is beyond dispute that the circuit court has the authority to correct the
clerk’s mistakes and may do so at any time. As noted above, the legislature has
codified this principle in section 16(5) of the Clerks of Courts Act, which provides
that the clerk’s fee book is “subject *** at all times to be corrected by the court.”
705 ILCS 105/16(5) (West 2016). And if the circuit court has that authority, then
the appellate court has that authority while it has jurisdiction over the case. Illinois
Supreme Court Rule 366(a)(1) 4 provides that a reviewing court may “exercise all
or any of the powers of amendment of the trial court,” Rule 366(a)(3) provides that
a reviewing court may “order or permit the record to be amended by correcting
errors or by adding matters that should have been included,” and Rule 366(a)(5)
provides that a reviewing court may “enter any judgment and make any order that
ought to have been given or made, and make any other and further orders and grant
any relief, including a remandment, a partial reversal, the order of a partial new
trial, the entry of a remittitur, or the enforcement of a judgment, that the case may
require.” (Emphases added.) Ill. S. Ct. R. 366(a) (eff. Feb. 1, 1994); see also
Gegenhuber v. Hystopolis Production, Inc., 277 Ill. App. 3d 429, 432 (1995) (citing
Rule 366(a)(3) and holding “[a]s a reviewing court, we have the power to correct
clerical errors”). It is difficult to conceive of a broader grant of power to a
reviewing court than the power to grant any relief that the case may require. Thus,
an appellate court that has jurisdiction over a criminal case in which fines have
been incorrectly recorded by the clerk not only has the power to correct the
mistake; the appellate court should do so in the interest of judicial economy. This
4
In People v. Enoch, 122 Ill. 2d 176, 188-90 (1988), this court explained that, while not all of
Rule 366 is applicable to criminal appeals, it had applied subsection (a) to criminal appeals and this
subsection is considered similar to Illinois Supreme Court Rule 615(b).
- 32 ­
used to mean adding a few sentences to an appellate court opinion. Going forward,
striking these fines will require another round of litigation.
¶ 87 The State undoubtedly recognizes that, if the trial court has the power to vacate
the fines, then an appellate court having jurisdiction over the case also has the
power to vacate the fines. In Gutierrez, the State argued that the appropriate remedy
for a defendant subjected to an illegal assessment by the clerk is to file a motion in
the trial court to have the assessment vacated. In this case, the State has abandoned
that position and argues that a defendant’s only remedy in this situation is to contact
the clerk’s office and request that its records be corrected. 5 The State undoubtedly
realized that it had painted itself into a corner by conceding the trial court’s
authority to vacate the assessment because this necessarily concedes the same
power to a reviewing court having jurisdiction over the case.
¶ 88 Clearly, then, the majority’s focus on the fact that the assessments were not in
the circuit court’s final order is misplaced. Even if we ignore the effects of section
16(5) of the Clerks of Courts Act, defendant may raise this issue because it is of the
type that may be raised at any time and at any stage of court proceedings. See
People v. Caballero, 228 Ill. 2d 79, 88 (2008). Defendant’s issue may be raised at
any time under either of two theories: (1) the assessments were void from their
inception because they were imposed by the clerk and not by the court, or (2) the
court has the inherent authority to correct mistakes of the circuit clerk, and Rule
366 gives a reviewing court the same power while it has jurisdiction over the case.
¶ 89 The majority claims that we have an anomalous circumstance in which a
defendant filed an appeal seeking to uphold the judgment entered by the circuit
court. Supra ¶ 20. To be clear, defendant is not seeking to uphold the trial court’s
judgment; he is simply not contesting it. Rather, he is contesting the unauthorized
5
The majority agrees with the State that defendants should try to work out these problems with
the clerk. Supra ¶ 31. It is difficult to see how the State and the majority can make this argument
with a straight face. This court and the appellate court have been telling circuit clerks for decades
that they cannot impose fines and have gotten nowhere. But the State and the majority believe that a
circuit clerk will be completely open to a criminal defendant’s claim that the clerk doesn’t know
how to do his or her job. Presumably, the clerk’s response to a defendant who complains about the
assessments will be that the fines are mandatory. The clerk would not have assessed the fines if it did
not believe it had the authority to do so. The almost certain result of today’s opinion is that the vast
majority of fines assessed by circuit clerks will simply remain in place.
- 33 ­
assessments entered by the circuit clerk. This is not an “anomalous circumstance.”
It is merely a recognition of the principle expressed in Caballero that certain issues
may be raised at any time. In People v. Buffkin, 2016 IL App (2d) 140792, the
appellate court had jurisdiction over an appeal from the dismissal of the
defendant’s postconviction petition. The defendant in no way challenged the
dismissal of that petition but rather raised two issues that were not included in the
petition. First, he sought to obtain sentencing credits for which he had never
previously applied. The court explained that it could reach this issue and award the
credits because of this court’s decision in Caballero. Id. ¶ 4. In doing so, the court
in no way acted on the judgment from which the defendant appealed. Indeed, the
judgment line was simply “Remanded with directions.” Id. ¶ 16. The defendant
also sought vacatur of his DNA analysis fee, but the court held that it could not
reach that claim because Caballero was limited to the types of issues that could be
raised at any time. Id. ¶ 7. Thus, because certain issues are such that they may be
raised at any time and at any stage of court proceedings, there can be instances in
which a defendant does not challenge the judgment appealed from but nevertheless
has an issue that the appellate court may address.
¶ 90 The majority’s only response to the inherent authority argument is to double
down on its mistaken view of this case. The majority claims that recognition of the
position I set forth here would be allowing a direct appeal from a clerical error and
that this would permit the appellate court to exercise original mandamus
jurisdiction. Supra ¶ 29. Nothing could be further from the truth. The court’s
authority to correct mistakes of the clerk is not limited to mandamus proceedings.
The circuit clerk is not just any public official, and he is not independent of the
court. Rather, he is “the instrument the law has designated, for convenience and the
dispatch of business, to record the determination and sentence of the court” (Hall,
34 Ill. at 363), and he may only enter orders subject to judicial control (Moore, 276
Ill. at 53). Moreover, defendant did not appeal from a clerical error. Defendant
appealed from the final judgment in his case, and he raised an issue that can be
raised at any time. Acceptance of the position I have set forth here merely requires
acceptance of three propositions, none of which the majority has contested or can
contest. First, courts of justice have inherent authority to correct their records and
rectify mistakes of the circuit clerk, and this power may be exercised at any time.
Second, the appellate court obtained jurisdiction over this case by way of
defendant’s timely filed notice of appeal. Third, a reviewing court that has
- 34 ­
jurisdiction over the case may, pursuant to Rule 366(a), exercise all powers of
amendment of the trial court, enter any order that ought to have been given or made,
correct errors in the record, and grant any relief that the case may require. Thus, if
the circuit court can vacate the unauthorized fines at any time, the appellate court
has the authority to do the same thing while it has jurisdiction over the case.
¶ 91 V. Conclusion
¶ 92 This court put these issues to rest six years ago in Gutierrez, and the majority
overrules that decision without even acknowledging stare decisis principles. The
majority’s argument that Gutierrez was undermined by Castleberry and Hardman
does not withstand a moment’s scrutiny, and there is no legitimate reason not to
follow our precedent.
¶ 93 It is doubtful that any court has endorsed a more enfeebled notion of appellate
court power than that set forth by the majority today. The majority holds that when
faced with illegal and void fines assessed by a clerical employee in the trial court’s
administrative arm, a reviewing court having jurisdiction over the case is powerless
to act. This is directly contrary to section 16(5) of the Clerks of Courts Act, which
provides that a clerk’s assessments are considered part of the record. It is also
contrary to longstanding authority from this court that (1) attempts by clerks to
perform judicial functions are void and unenforceable and (2) the power to correct
mistakes of the circuit clerk is inherent in courts of justice. Whether viewed as
illegal assessments that are void or simply as clerical errors, the improperly
imposed fines could be challenged at any time, and the appellate court had
jurisdiction to vacate them. I therefore do not join the majority opinion.
¶ 94 CHIEF JUSTICE KARMEIER joins in this dissent.
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